Lawyer finds big problems in Marine and Coastal Area Act

posted by Mike Butler
October 17, 2017

The Marine and Coastal Area (Takutai Moana) Act 2011 has a number of problems, according to a legal opinion obtained by Hobson’s Pledge on correspondence relating to the Act and the huge number of last-minute claims by Maori groups earlier this year. Wellington law firm Franks Ogilvie wrote:

The MACA Act provides a unique regime for claimants that is specifically available only to Maori, unlike the predecessor Foreshore and Seabed Act 2004.

The rights sketched out by the MACA Act are not the property rights affirmed by the Treaty, and they are not the rights available to “any other New Zealander”. Instead they are rights the Courts (or Cabinet under the direct negotiation model) may invent under the loose instructions in the MACA Act only for Maori groups.

The MACA Act repudiates the people’s entitlement under the simplicity of the Crown’s “radical underlying title”. The MACA Act legislates instead the empty political slogan that ‘nobody owns the marine and coastal area”. It then cumbersomely proceeds to reinstate for the Crown the powers of control and bundle of rights that are ownership. So, the Crown remains the owner for practical purposes, while pretending legally to Maori that it is not, yet claiming the right for Cabinet to confer ownership type rights on Maori claimants.

When the Crown is funding only one side in a case, and has skewed the normal rules regarding evidence, and established procedures that can mean the other side may not even know of the claim, or may breach the law because it has no practical way to find out, we have indeed a “majestic” view of equality. In practice objectors were severely handicapped even without the deliberate skews, because the MACA Act creates no rights for public spirited persons to get financial support from the general public whose interests they may be defending.

These problems are among numerous issues found by Franks Ogilvie when asked to evaluate correspondence between Hobson’s Pledge spokesman Don Brash and the Act’s architect, Treaty Negotiations Minister Christopher Finlayson.